Appeals court gives IG powers to recruit police constables in tussle with Commission
The Court of Appeal has upheld a ruling barring the National Police Service Commission (NPSC) from recruiting police constables.
In a unanimous judgment delivered by Justices P.O. Kiage, Jamila Mohammed and J. Lesiit, the court dismissed consolidated appeals by the NPSC and the Law Society of Kenya (LSK) challenging an Employment and Labour Relations Court decision that declared the Commission’s recruitment powers unconstitutional.
The appellate court agreed with Justice Hellen Wasilwa that the NPSC is not a national security organ under Article 239 of the Constitution and therefore cannot exercise recruitment powers over members of the Service.
The judges held that the Constitution distinguishes between members of the National Police Service, who operate under the independent command of the Inspector-General, and civilian personnel employed to hold offices within the Service, whose recruitment falls under the Commission’s mandate.
The dispute arose in September 2025 when the NPSC advertised vacancies for police constables in the Daily Nation and published Legal Notice No. 159 of 2025, containing regulations governing recruitment and appointment.
The advertisement prompted petitioners John Harun Mwau to move to court, arguing that the Commission lacked constitutional authority to recruit police officers.
Mwau relied on Article 238(2)(d) of the Constitution, which requires recruitment by national security organs to reflect Kenya’s diversity in equitable proportions, arguing that such recruitment must be undertaken by the security organs themselves.
The petition was supported by the Inspector-General, the National Police Service, the Attorney-General and the National Security Council, while the Independent Policing Oversight Authority opposed it.
On October 30, 2025, Justice Wasilwa ruled in Mwau’s favour, declaring Legal Notice No. 159 of 2025 unconstitutional, null and void.
The court also issued permanent orders restraining the Commission from recruiting, training, employing, assigning, promoting, suspending or dismissing members of the National Police Service.
Dissatisfied with the decision, the NPSC and LSK filed separate appeals, challenging the ELRC’s jurisdiction, its interpretation of the Constitution and its failure, as they argued, to follow binding judicial precedent.
However, the Court of Appeal rejected the argument that the ELRC lacked jurisdiction, finding that the dispute concerned recruitment, appointment, promotion, discipline, dismissal and other human resource functions central to employment and labour relations.
The appellate court also dismissed the argument that the trial judge had disregarded an earlier Court of Appeal decision involving the Independent Policing Oversight Authority.
It found that the earlier case addressed the legality of sub-county recruitment committees rather than the specific constitutional question of whether recruitment powers over police officers belonged to the Commission or the Service.
On the substantive question, the court held that Article 246(3) of the Constitution, which empowers the NPSC to recruit and appoint persons to hold or act in offices within the Service, does not extend to sworn police officers.
The judges said the distinction between “members of the Service” and “persons holding offices in the Service” was deliberate, with the latter referring to civilian personnel undertaking administrative, technical, clerical, medical, accounting, information technology and legal functions.
The court further relied on Article 245, which vests independent command of the National Police Service in the Inspector-General and prohibits external directions concerning the employment, assignment, promotion, suspension or dismissal of members of the Service.
It rejected the appellants’ reliance on Article 238(2)(d), holding that the provision sets out a guiding principle for recruitment rather than conferring recruitment authority on the Commission.
The judges ruled that Article 239 identifies the Kenya Defence Forces, the National Intelligence Service and the National Police Service as national security organs, with the NPSC excluded from that list.
The court also dismissed arguments that the historical circumstances surrounding the Commission’s establishment supported its claim to recruitment powers, ruling that constitutional interpretation must begin with the text of the Constitution.
It further found a Nigerian Supreme Court decision on police recruitment inapplicable, noting that the constitutional provisions governing the police in Nigeria differ significantly from those in Kenya.
Although the Attorney-General raised a preliminary objection questioning LSK’s standing to appeal because it had not been a party to the original proceedings, the court did not make a separate determination on the objection, proceeding instead to dismiss the consolidated appeals on their merits.
The court ordered each party to bear its own costs, citing the public interest nature of the dispute.
Inspector General of Police Douglas Kanja welcomed the ruling saying it had vindicated the Constitutional order.
“The Constitutional order has been vindicated,” Kanja said.
